Sunday, October 21, 2007

Malik Hussein And The Independence Of The Judiciary

The Deputy Internal Security Minister, Datuk Fu Ah Kiow, is wrong. The decision of Mr Justice Hishamudin Yunus in the Malik Hussein suit against the Government for his wrongful detention and torture under the Internal Security Act (ISA) is not testament to the judiciary being independent (see ‘Decision Shows Judiciary Independent’, The Star, 21.10.2007). To the contrary, it is concrete evidence of there being basis for serious concern about the Judiciary and its independence.

The judgment has been declared a landmark judgment simply because the Government lost. When one considers the case brought by Malik Hussein, it would be difficult to see how any judge could have ruled otherwise. This is not to say that the judgment is not exceptional. It is for the fact that it is higly unlikely that many a judge would have ruled against the Government the way Justice Hishamudin did. The judgment is a testament to the independence and integrity of Justice Hishamudin, and his unwavering commitment to the rule of law.

In May 2001, Justice Hisahmudin ordered the release of Reformasi activists, Abdul Ghani Haroon and N Gobalakrishnan from detention under the ISA. They had been detained along with Ezam Mohd Noor, Raja Petra and 6 others. His judgment, which I had occasion to describe then as a ‘pioneering judgment’, was a tribute to constitutionalism and the protection of the individual from arbitrary acts of the Executive. The habeas corpus application for Ezam Mohd Noor and 5 of the others came up before Justice Augustine Paul (then in the High Court). The same grounds were advanced in support with Sivarasa leading the team there, as he had for the Ghani Haroon/Gobalakrishnan application. Justice Paul dismissed the application and held that the detentions were lawful (see here for commentary).

The day Justice Hishamudin declared the detention of Ghani Haroon and Gobalakrishnan, he also made a ground-breaking order restraining the police from re-arresting Ghani Haroon and Gobalakrishnan for a period of 24 hours.

A very short while later, Justice Hishamudin was quite suddenly transferred to the Civil Division of the Kuala Lumpur High Court. By coincidence or otherwise, he was not able to hear any further habeas corpus applications. He however went on to deliver several other very important decisions including the one in which he, correctly in my view, declared the Federal Court judgment in the notorious and highly controversial Ayer Molek case (see here for background) to be unconstitutional. Along the way, he also delivered judgment in favour of Anwar Ibrahim in the defamation case brought by Anwar against Khalid Jafri and also presided over the assault claim brought by Anwar against the Government and the former Inspector General of Police, Tan Sri Rahim Noor (see 'A Judge of the big events', The Star, 20.10.2007)

I have the highest regard and the deepest admiration for this man of principle. I moved the Court for the order suspending the re-arrest Ghani Haroon and Gobalakrishnan. Justice Hishamudin’s sense of fair play and justice came to the fore that day as he recognized that a re-arrest would be inhumane. It was a defining moment, and it shaped my understanding of how far the interests of justice could be advanced with a just man on the bench.

He embodies all the qualities that a Judge should have. His humility, patience and judicious temperament are well known at the Bar as is his willingness to learn from the lawyers appearing before him.

Which takes me to my point. With all these qualities and more, why is Justice Hishamudin still a High Court judge? He was elevated to the High Court bench in 1995. He has an excellent track record. Judges elevated after him have made it to the Federal Court, a court in which Justice Hishmudin should be sitting.

Perhaps it is these very qualities, cherished by the Bar, that has kept Justice Hishamudin in the High Court.

So, is the judgment a testament to the independence of the Judiciary? I do not think so. It is a testament to how unacceptable the current way in which Judges are elevated and promoted is. It is a testament to the challenges faced by those judges who have had the fortitude to act in accordance with the law and their judicial conscience in hard cases, challenges that, if there truly was judicial independence, would be non-existent.

For those of you who have not signed the People’s Parliament Petition – Save The Judiciary – please do so. The Judges need us as much as we need them. E-mail your name and IC number to savethejudiciary@gmail.com (to view the petition, go here).

very well said.is it the same paul who is noted for his ubiquitous "non-admissible" decision against Anwar? Pray you better not appear before him if the other party against you is well connected to the establishment. another correct, correct, correct fella.

A great article. I have not know how this judge looks like but I know he is a man of God, a man of integrity, a man with a human soul.Sorry, he cannot sit in the Federal Court bench since that position(and promotions)is meant for scums in the judiciary.This judge is a shining star in the Malaysian Judiciary which is wallowing in shit.Incidentally, this blog owner, to my mind, will also make a fine judge.

Great article Malik, Surely we must support and praise those judges that dare to stand tall and deliver judgment again their own personal interest. Throughout the history of ancient China, there were countless corrupted judges and they are made into movies.So when Justice Bao appeared and brought justice to the people, they all honored and adored him. If you see shops or homes that have a black statue on their altar, that is Justice Bao. People still remembern him to these days. All of us will remember Justice Hishamudin for his courage. I agree with mr.smith that the Justice is a man of God. It is better that we fear God rather than men. Jimmy

Being victim of Defamation, his judgment that one cannot bring up a defamation case on basis of one's wrong doing is loud and clear. Unfortunately, a number of defamation cases raised by some lawyers are still within this category. Especially when BAR failed to act efficiently and in some case being Bias.

When comparing with other countries, his "landmark" judgments might not be needed as the cases are in fact because of the bully or the manipulation of the Government or his agents!

Landmark in the way, that justice could only find his way after the past away of the CJ involved in the case (after around 10 years!) Landmark because it like a spark in the winter night in North Pole. This ISA case and many other cases on Government abuses have not got a a fundamental punitive result as those who had been bully or should responsible for their bully had never been accounted. Are they hand-tied by the law or still by the system?

If AG is going to appeal, will that spark stay?

JUSTICE SHOULD NOT BE SOMETHING BETTER THAN NOTHING. BUT SHOULD BE SOMETHING THAT CAN SEE FAIRNESS FOR THOSE SUFFERED AND THOSE ABUSING, ESPECIALLY TO THOSE SUPPOSE TO KNOW AND EXERCISING THE LAW!!

Hope this GEM will continue to glow in darkness! Or, more Judges to lit the Darkness away together with competent lawyers!

I am surprised that there are men of integrity on the msian bench left, but am heartened to find that they do exist :) Alleluia! maybe there is hope yet if the people wud stand up and make their voice be counted